On August 3, 2017, a decree was issued dismissing Judge Shukri Sader from the presidency of the State Council and appointing Judge Henry Khoury in his place. There were few sporadic objections. But what stood out were the contradictory justifications that Minister of Justice Salim Jreissati expressed or that he was reported to have expressed and did not refute.

In this regard, the first leak was the content of the Council of Ministers’ deliberations relayed by the newspaper Al-Akhbar. The paper reported that Jreissati responded to one minister’s questions by saying, “Sader’s problem is that he delays many rulings in the State Council, obstructing the course of justice”. Fellow ministers asked him to disclose these infractions – none of which were mentioned in the decision to dismiss Sader. as they have a right to know the reasons for dismissing such an important judge. Jreissati refrained from specifying the infractions, arguing he was not obliged to do so (Al-Akhbar, August 4, 2017).

Jreissati’s discourse inside the Council of Ministers differed from his subsequent discourse in public in two ways:

1- The first difference was that when approaching Sader’s dismissal, Jreissati’s spoke of civility instead of accountability. He stated that Sader had not committed any infraction; rather, he was transferred from the presidency of the State Shura Council to an equivalent position, namely a chamber presidency in the Court of Cassation. The implication was that the government was not dismissing a judge in a high position but conducting a routine judicial transfer. Anyone familiar with how the judiciary is organized knows that this is statement is a compliment out of touch with reality. The position from which Sader was dismissed – in which he enjoyed certain powers equivalent to those of a minister – is higher than a chamber presidency in the Court of Cassation. Furthermore, and according to the principles of judicial hierarchy, the executive branch’s appointment of Sader in the latter position remains ineffectual without approval by the Supreme Judicial Council (which never occurred). Jreissati seemed to have been forced to speak in a courteous manner in his public discourse (outside of closed chambers) because he knows that settling infractions is not within his purview and that continuing to claim infractions would subject him to both legal and political liability. The occurrence of judicial infractions is ascertained by the Judicial Inspection Committee rather than proclaimed without evidence by the minister of justice.

2- The second, and perhaps more important, difference [between Jreissati’s public and private discourse] arose in the face of escalating criticism of this stance. A major critic was  Minister of Public Works and Transport Youssef Fenianos who accused the government of dismissing Sader as an act of revenge. Fenianos quipped that “this presidency [i.e. the current presidency of Lebanon occupied by Michel Aoun] sends anyone who doesn’t go along with it on his way”. On August 4, Jreissati’s media office issued a statement containing a new justification for the dismissal: it was not based on infractions, nor was it a routine decision to transfer a judge from one position to another equivalent position; rather, it was imposed by “objective” circumstances concerning the work methodology in the administrative judiciary, which is simultaneously a rule-issuing and a consultative judiciary [i.e., a judiciary that provides its opinions on laws and decrees]. The minister of justice concluded the statement with a soliloquy directed at the minister of transport: “O colleague and former lawyer, do you not know that the State Council is also an oversight judiciary? Why have you not been so eager to make accusations when the Council of Ministers has made appointments to the other oversight administrations and bodies?”. Then, on August 5, Jreissati stressed this justification to MTV by saying that “Neither I nor the government intended to target Judge Shukri Sader. The goal of what happened was to change the approach within the judiciary”. The minister thus attributed the replacement of Sader as State Council president to the exigencies of the presidency’s desire to change the judicial approach. This reveals the minister’s conviction that the executive branch has the authority to replace and transfer judges for political reasons, just as it replaces the employees in the public administrations. The publication associated with the Free Patriotic movement then published on August 5 that people close to the minister of justice assert that “the Council of Ministers has the right to appoint. It cannot abandon or relinquish this right to any other authority, and it does not have to stop exercising or using it”.

Given these conflicting stances, the Civil Observatory wishes to register its deep concern about the measure taken for the following reasons:

• It constitutes a deviation from the principles that the Access to Information Law recently embodied. The law requires the political authorities and public administrations adopt all their public decisions and, by implication, their decrees on the basis of clear mandating reasons and to publish these mandating reasons. The contradictory and veiled information and justifications based on which the decree was adopted constitute a deviation from this principle.

• It constitutes a deviation from the international standards of judicial independence. These standards require the inoculation of judges against any arbitrary dismissal or transfer, even in countries that do not enshrine the principle of judges’ immovability or do not recognize all its dimensions. Judge Sader should not be accused overtly or implicitly of wrongdoings[1] if none have not been established via the legal mechanisms of accountability.[2] Nor should he have been transferred without established, compelling reasons showing a need to do so. As for the minister’s vague statement about the existence of objective facts derived from the presidency’s approach, it is an attempt to exploit the presidency’s popularity to portray its will as an objective fact. Anything that expresses the presidency’s will is objective or is the (undebatable) “truth” itself. This portrayal is merely a populist technique based on conflating the real truth with the ruling authority’s visions.

• It constitutes a violation of the principle of the separation of powers and a very dangerous precedent that could increase the vulnerability of the judiciary and the possibility of it becoming subordinated. What remains of the separation of powers principle if the executive branch can transfer judges from their positions without any objective justification besides its desire to appoint judges more concordant with its will, self-image, and approach [to governance]?[3] In this case, are we not replacing the principle of judicial independence with the principle of judges’ concord with and subordination to the ruling authority? Most importantly, does this not conflict with the President’s inaugural speech, which stated that the government must free the judiciary from political subordination? How can the judiciary be freed from this subordination if the government allows itself to appoint whomever it likes without any objective standards and dismiss whomever it likes without any justification? These questions are made more pressing by the concurrence of this dismissal with the judges’ work stoppage. The latter was [unusually] approved by the Supreme Judicial Council, which indicates that the ministers measure constitutes a veiled threat to members of this both councils.

  The Civil Observatory’s argument is not a condoning of the aptitude or good performance of the judicial officials; rather, the point is that reform occurs not through personalized decisions lacking transparency, but through the establishment of legislative mechanisms that guarantee the judiciary’s independence and transparency and allow it to improve and purge itself as part of a clear-cut reform project. On August 7,2017, more than 350 judges signed abpetition to demand laws for an independent judicial branch wherein judges elect their representatives in the judicial authorities. It is a development that might constitutes an important step toward building a competent, independent, and fair judiciary.

In conclusion, the best criticism of what occurred may be the words of late Judge Nasib Tarabay, one of the judiciary’s eminent figures. He delivered them on June 5, 1971 during his famous lecture on judicial appointments and transfers that he gave in the hall of the Court of Cassation. In this lecture, which remains extremely relevant despite the lapse of more than 46 years, Tarabay stated,

“Every time a president or government changes, discussion about the appointments and transfers in the administration and judiciary begins. It’s as though the judiciary, like the administration, is an executive tool that must be in sync with the policy of every president and government. I think the time has come for our democratic system, which has reached maturity, to consider this self-evident fact inherent to it: the judiciary is a branch of government, not an administration. It is a branch distinguished from the executive and legislative constitutional branches in that it does not get replaced, change, or become partisan or politicized; rather, in the structure of a democratic state, it remains the most fixed and stable component so that it can continue being an impenetrable wall protecting fundamental freedoms and rights, which, in a true democratic system, are not affected by the vagaries of politics or inter-party struggles. Hence, unless we replace our political system with an authoritarian one, the ruler cannot bring his own judges with him to government in the same way that he brings his ministers and advisors or even his directors and governors. For the sake of the independence of the judiciary and judges and the reputation of the democratic system to which we belong, judicial appointments and transfers must not be linked to the change of faces in the theatre of politics.”

Perhaps the new presidency can learn a lesson.

This article is an edited translation from Arabic.

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[1] Avis no18 du Conseil consultatif de juges européens § VIII-18: (paragraphe 53).
[2] Avis no18 du Conseil consultatif de juges européens § 44
[3] Avis no18 du Conseil consultatif de juges européens § VIII-4 (paragraphes 13 – 15 et 44).